Kisinzi v Kisinzi (Environment and Land Appeal 15 of 2020) [2024] KEELC 7226 (KLR)
The bottom line
#The High Court refused to reopen a 2022 land judgment because the defendant waited too long, gave no new evidence, and never showed a draft defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the conditions for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
No: no new and important matter discovered, no error apparent on the face of the record pinpointed, no sufficient reason shown, and the application was filed with unreasonable and unexplained delay of over a year
The court traced the statutory grounds for review and their judicial interpretation. It found no new evidence that could not have been produced earlier, no error identified by the Applicant, no sufficient cause, and that the delay from 22/06/2022 to 11/10/2023 was 'far from reasonable and the same has not been explained', citing John Agina on unexplained delay.
Whether the ex parte judgment of 22nd June 2022 should be set aside under Order 10 Rule 11
No: the judgment was regular because the Defendant was duly served and chose to forego the opportunity to be heard after his advocates came off record for want of instructions
The court applied the Patel and James Kanyita Nderitu criteria distinguishing regular from irregular default judgments. The record showed personal service, appearance filed by Munyasya & Co. Advocates, service of the application to cease acting, and subsequent service of all execution and taxation processes. The Defendant was therefore duly served and the judgment regular; discretion was exercised against setting it aside given absence of a draft defence and inordinate delay.
Whether the Applicant should be granted leave to file a defence out of time
No: the Applicant did not annex a draft defence, making it impossible to assess whether triable issues exist, and the application came more than a year after judgment
The court noted the absence of a draft defence annexed to the application, so it could not determine whether a defence raising triable issues or with chances of success exists. The application was also filed after judgment and subsequent execution proceedings (eviction, taxation) had been concluded.
Legal principles established
#- An applicant for review must demonstrate discovery of new and important matter, an error apparent on the face of the record, sufficient reason, and absence of unreasonable delay
- A regular default judgment (where the defendant was duly served) may only be set aside in the court's discretion under Order 10 Rule 11, whereas an irregular default judgment is set aside as of right
- An unexplained delay in applying for review does not constitute sufficient reason
Court orders
#- 1.The Notice of Motion dated 11th October 2023 is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Articles 159(2)(a), (b), (d) of the Constitution; Order 50 Rule 1 and Order 45 Rules 1, 2 & 3 of the Civil Procedure Rules; Section 80 of the Civil Procedure Act; Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisinzi v Kisinzi (Environment and Land Appeal 15 of 2020) [2024] KEELC 7226 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7226/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.